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Dangerous Ambiguities: Regulation of Incapacitants and Riot Control Agents Under the Chemical Weapons Convention, OPCW Open Foru

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Dangerous Ambiguities: Regulation of Incapacitants and Riot Control Agents Under the Chemical Weapons Convention, OPCW Open Foru Dangerous Ambiguities: Regulation of incapacitants and riot control agents under the Chemical Weapons Convention OPCW Open Forum Meeting, 2nd December 2009 Michael Crowley Project coordinator Bradford Nonlethal Weapon Research Project Chemical Weapons Convention • The Chemical Weapons Convention has proven to be an important defence against the horrors of chemical warfare, vitally important for protecting both military personnel and civilians alike. • Its core obligations are powerfully set out under Article 1, namely that States will never under any circumstances develop, stockpile, transfer or use chemical weapons. • However, certain ambiguities and limitations in the CWC control regime exist regarding regulation of riot control agents (RCAs) and incapacitants. If not addressed, they could endanger the stability of the Convention. Chemical Weapons Convention • Article 1: • Each State Party to this Convention undertakes never under any circumstances: •(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; •(b) To use chemical weapons; • (c) To engage in any military preparations to use chemical weapons; •(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. [Emphasis added]. CWC: Scope of coverage • The CWC is comprehensive in the toxic chemicals it regulates. • The definition of “toxic chemicals” under Article 2.2 includes chemicals that cause “temporary incapacitation”. • Under the Convention, the use of such “toxic chemicals” would be forbidden unless employed for “purposes not prohibited” and as long as the “types and quantities” are consistent with such purposes. • Among the “purposes not prohibited” is: “law enforcement including domestic riot control”. Chemical weapons convention • Scope of coverage • Article 2.2 defines a “toxic chemical” as: • “…any chemical, regardless of its origin or method of production, which, through chemical action on life processes, can cause death, temporary incapacitation or permanent harm to humans or animals.” • Article 2.1(a), states that chemical weapons include all ‘‘toxic chemicals and their precursors, except where intended for purposes not prohibited, as long as the types and quantities are consistent with such purposes.’’ • Under ‘‘purposes not prohibited’’ Article 2.9 includes: •(c) “Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare” •(d)‘‘Law enforcement including domestic riot control purposes,’’ [Emphasis added]. Limitations of the CWC control regime with regard to regulation of incapacitants and RCAs • Weaknesses in CWC textual architecture – Certain Articles detailing States' obligations are ambiguous. Exacerbated by lack of definition of certain key terms e.g. law enforcement, method of warfare, temporary incapacitation. – Ambiguities have not been addressed by policy making organs – potentially allowing divergent interpretation by States Parties • Severe limitations in declaration and transparency mechanisms • Failure of States Parties to effectively utilise multilateral consultation and investigation mechanisms in response to possible breaches. • Failure of oversight bodies/policy making organs – particularly Executive Council and Conference of States Parties - to respond to possible breaches. Regulation of Riot Control Agents (RCAs) • RCAs defined under Convention as: “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” Article 2.7 • Convention expressly prohibits the use of “riot control agents as a method of warfare”. Article 1.5 • Convention permits use of toxic chemicals for “Law enforcement including domestic riot control purposes”. Article 2.9(d) Purpose not prohibited: “Law enforcement” • The Convention permits use of riot control agents for “Law enforcement including domestic riot control purposes” [Article 2.9(d)] – but does not define the nature and scope of such activities. • RCAs when used by law enforcement officials in accordance with the manufacturers’ instructions and in line with international human rights standards are an important alternative to other applications of force more likely to result in injury or death i.e. firearms. • They are legitimately used to disperse violent crowds/mobs, or to incapacitate violent individuals. • But they are also open to misuse. Legitimate law enforcement? • A non-exhaustive survey of documentation from UN human rights bodies and respected international non-governmental human rights organisations reveals reported misuse of RCAs by law enforcement officials in 35 countries from 2004- 2008. RCAs have been used: • to suppress the rights to freedom of expression and assembly, • in the excessive use of force • in conjunction with firearms as a force multiplyer • in enclosed spaces • for ill-treatment and torture • In some instances misuse of RCAs, particularly in enclosed spaces, has resulted in serious injury or death. As well as potentially violating international human rights standards or agreements, some of these actions appear to be inconsistent with the “types and quantities” provision of Article 2.1 and the “law enforcement” provision of Article 2.9. However to date no cases of such misuse have been raised by States Parties as matters of concern in the context of the CWC. Nor has the nature and scope of “law enforcement” under the Convention been addressed by any policy making organ. Prohibited purpose: “method of warfare” The CWC expressly prohibits the use of “riot control agents as a method of warfare”. Article 1.5 However “method of warfare” has not been defined under the Convention and the Convention's policy making organs have not issued an interpretation of Article 1.5. Whilst the majority of States uphold a comprehensive interpretation of this prohibition, one State Party maintains a long-held position that RCAs can be legitimately used for a range of non-offensive actions, by military forces present in certain areas of armed conflict. Furthermore, because “method of warfare” and “law enforcement” have not been described and the line between them has not been drawn, there are different interpretations of what activities lying along this spectrum are permitted. Consequently one State Party, at least, appears to have permitted the use of RCAs by armed forces in counter- insurgency operations. If not addressed, such differences in interpretation can have a corrosive effect on the stability of the regime. Concerns regarding reporting and transparency of RCA holdings • Under Article 3.1.e, States Parties are required to submit an initial declaration of all chemicals that are kept for riot control purposes. • However, States Parties are not specifically requested to provide any details of: – quantities of RCAs held; – means of delivery – are they in hand-thrown cannisters or sprays suitable for law enforcement or are they in mortar shells, artillery projectiles or cluster bombs intended for armed conflict? – Who holds RCA stockpiles – military or police agencies? • Without such information the confidence-building utility of this system for alerting States Parties to militarily significant levels of RCAs appears to be extremely limited. Limitations in RCA reporting and transparency Number of States Parties that had declared riot control agents, by type of agent, as at 31st December 2008 • Public transparency in this area is minimal. The only information civil society can obtain comes from the OPCW Annual Implementation Report which includes the chart opposite. Although it shows the total number of countries holding each particular type of RCA – there is no information detailing which country holds which RCA. Proposals for CWC States Parties: developing effective regulation of riot control agents • CWC related activities • Initiate intergovernmental consultation mechanism: to address regulation of RCAs under the CWC– feeding into deliberations for 3rd CWC Review Conference. [As well as addressing the issues previously raised, this should also explore limitations on the development, transfer and use of munitions and delivery devices for RCAs.] • Utilise existing CWC consultation, investigation and fact-finding mechanisms where reports of possible breaches of Convention come to light: Either bi-lateral consultation between States Parties or if this fails, under Article 9 of the Convention. • Promote good practice in reporting and transparency: As well as full and timely RCA declarations, States Parties should provide information on quantities of RCA held, associated means of delivery and authorities holding and permited to use RCAs. • Parallel activities • Explore regulation of RCAs under relevant international law: particularly Geneva Protocol, international human rights law and international humanitarian law (i.e. Geneva Conventions and Additional Protocols). Incapacitating chemical and biochemical agents (incapacitants) Although the definition of “toxic chemicals” includes those that cause “temporary incapacitation”, neither “temporary incapacitation” nor “incapacitants” are defined under the CWC. Furthermore, the status of incapacitants and their regulation under the Convention is contested. As a working description incapacitants can be considered as: substances whose chemical action on specific
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